THE WATERS
LEASE OF SPACE
THIS LEASE, made as of the 24th day of October , 1997, by and between
Xxxxxx X. Xxxxxxxx ("Landlord"), and HYPERTENSION DIAGNOSTICS, INC., (A
MINNESOTA CORPORATION) ("Tenant").
1. GENERAL
1.1 CONSIDERATION. Landlord enters into this Lease in
consideration of the payment by Tenant of the rents herein reserved and the
keeping, observance and performance by Tenant of the covenants and agreements of
Tenant herein contained.
1.2 EXHIBITS AND ADDENDA TO LEASE. The Exhibits and Rider to
Lease listed below shall be attached to this Lease and be deemed incorporated in
this Lease by this reference. In the event of any inconsistency between such
Exhibits and Rider to Lease and the terms and provisions of this Lease, the
terms and provisions of the Exhibits and Rider to Lease shall control. The
Exhibits and Rider to Lease to this Lease are:
Rider to Lease Additional Lease Terms
Exhibit "A" Basic Lease Information
Exhibit "B" Site Plan of Property
Exhibit "C" Site Plan of Park
Exhibit "D" Environmental Rider
2. DEMISE OF PREMISES
2.1 DEMISE. Subject to the provisions, covenants and agreements
herein contained, Landlord hereby leases and demises to Tenant, and Tenant
hereby leases from Landlord, the Demised Premises as hereinafter defined,
together with a nonexclusive right to use the Parking Area and the Common
Facilities, as hereinafter defined, for the Lease Term as hereinafter defined,
subject to existing covenants, conditions, restrictions, easements and
encumbrances and rules and regulations, if any, affecting the same.
2.2 DEMISED PREMISES. The "Demised Premises" shall mean the
space to be occupied by Tenant as indicated by cross-hatching on the Site Plan
attached as Exhibit "B" hereto. The Demised Premises are within the Building(s)
located on the Land, as the terms "Building(s)" and "Land" are hereinafter
defined.
2.3 SQUARE FOOTAGE AND ADDRESS. The Demised Premises contain
approximately the number of square feet set forth in Exhibit "A" attached
hereto. The address of the Demised Premises is, or is expected to be, the
address set forth in Exhibit "A".
2.4 LAND. "Land" shall mean the parcel of real property more
particularly described in Exhibit "A" attached hereto.
2.5 BUILDING(S). "Building(s)" shall mean all buildings
constricted or to be constructed on the Land.
2.6 IMPROVEMENTS. "Improvements" shall mean the Building(s),
constructed on the Land, the Parking Area as hereinafter defined, and all other
fixtures and improvements on the land, including landscaping thereon.
2.7 PROPERTY. "Property" shall mean the Land, the Buildings(s)
and other Improvements and any fixtures and personal property used in operation
and maintenance of the Land, Building(s) and other Improvements other than
fixtures and personal property of Tenant and other tenants of space in the
Building(s).
2.8 COMMON FACILITIES. "Common Facilities" shall mean all of
the Property except the Demised Premises and other premises in the Property
leased or held for lease to tenants. Common Facilities shall include the
Parking Area and any walks, driveways, lobby areas, halls, stairs and rest rooms
designed for nonexclusive use of Tenant and other tenants of space in the
Buildings(s) and their employees, agents and invitees, and Landlord.
2.9 PARKING AREA. "Parking Area" shall mean the portion of the
Land which is or is to be paved and otherwise improved for the parking of motor
vehicles. The Parking Area is intended to be shared Tenant and other tenants of
space in the Buildings(s).
2.10 PARK. The Property is located in and is part of Landlord's
development commonly known as The Waters (the "Park"). A site plan of the Park
is attached hereto as Exhibit "C".
2.11 USE OF COMMON FACILITIES. Tenant is hereby granted the
nonexclusive right to use, in common with other tenants of space in the
Building(s), their employees, agents and invitees, so much of the Common
Facilities as may be necessary for the convenient use and enjoyment of the
Demised Premises.
2.12 COVENANT AND QUIET ENJOYMENT. Landlord covenants and agrees
that, provided Tenant is not in default and keeps, observes and performs the
covenants and agreements of Tenant contained in this Lease, Landlord shall take
no action to disturb Tenant's quiet and peaceable possession of the Demised
Premises during the term hereof.
2.13 CONDITION OF DEMISED PREMISES. Tenant covenants and agrees
that, upon taking possession of the Demised Premises, Tenant shall be deemed to
have accepted the Demised Premises "as is" and Tenant shall be deemed to have
waived any warranty of condition or habitability, suitability for occupancy, use
or habitation, fitness for a particular purpose or merchantability, express or
implied, relating to the Demised Premises. Tenant acknowledges, represents and
agrees that Tenant has made its
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own inspection and investigation of the Demised Premises, the Building(s) and
the Property, the suitability of the Demised Premises for Tenant's intended
use thereof and all zoning and regulatory matters pertinent thereto.
3. TERM OF LEASE
3.1 LEASE TERM. "Lease Term" shall mean the period commencing
on the commencement date specified in Exhibit "A" attached hereto ("Commencement
Date") and expiring on the Expiration Date specified in Exhibit "A" attached
hereto provided, however, that if construction of the Demised Premises has not
been substantially completed as of the date hereof, the provisions of any
Addendum hereto with respect to contraction and completion of the Demised
Premises shall govern with respect to commencement and expiration of the Lease
Term.
4. RENT AND OTHER AMOUNTS PAYABLE
4.1 BASE RENT. Tenant covenants and agrees to pay to Landlord,
when due, without offset, deduction or abatement and without prior notice or
demand, base rent for the full Lease Term in the amount specified as base rent
in Exhibit "A" attached hereto ("Base Rent").
4.2 MONTHLY RENT. Base Rent shall be payable monthly in
advance, without notice, in equal installments in the Monthly Rent Amount of
Base Rent specified in Exhibit "A" ("Monthly Rent") on the first (1st) day of
each calendar month through the Lease Term beginning with the Commencement Date.
If the Commencement Date is other than the 1st (1st) day of a calendar month,
the Monthly Rent for such fractional month shall be a pro rata amount (based
upon a 30-day month) of the full Monthly Rent and shall be paid on the
Commencement Date. Concurrently with the execution of this Lease, Tenant shall
pay to Landlord the Monthly Rent for the first fall month of the Lease Term.
4.3 PLACE AND MANNER OF PAYMENTS. Base Rent and all other sums
payable by Tenant to Landlord under this Lease shall be paid to Landlord at the
place for payments specified in Exhibit "A", or such other place as Landlord
may, from time to time, designate in writing. Payment shall be made in lawful
money of the United States of America.
4.4 LEASE A NET LEASE AND RENT ABSOLUTE. It is the intent of
the parties that the Base Rent provided in this Lease shall be a net payment to
Landlord; that the Lease shall continue, and rents shall be due and payable for
the full Lease Term, notwithstanding any occurrence preventing or restricting
use and occupancy of the Demised Premises, including any damage or destruction
affecting the Demised Premises, and any action by any governmental authority
relating to or affecting the Demised Premises, except as otherwise specifically
provided in this Lease; that the Base Rent shall be absolutely payable without
offset, reduction or abatement for any cause except as may be otherwise
specifically provided in this Lease; that Landlord shall not bear any costs or
expenses relating to the demised Premises or provide any services or do any act
in connection with the Demised Premises except as otherwise specifically
provided in this Lease; and that Tenant shall pay, in addition to Base Rent,
Additional Rent as provided in this Lease.
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4.5 ADDITIONAL RENT. Tenant covenants and agrees to pay, as
Additional Rent, all costs and expenses relating to the Demised Premises, to pay
Tenant's Pro Rata Share of all costs and expenses relating to the Common
Facilities to pay Tenant's Pro Rata Share of certain costs and expenses relating
to the Property and the Park, all as hereinafter provided, and to pay all other
amounts payable by Tenant under the terms of this Lease ("Additional Rent").
Costs and expenses payable by Tenant as Additional Rent shall include (a) taxes
and assessments; (b) insurance costs; (c) utility charges; (d) operating
expenses; (e) maintenance and repair expenses; and (f) other costs and expenses
relating to the Demised Premises, the Common Facilities, the Property and the
Park during or attributable to the Lease Term, all as hereinafter provided in
this Lease.
4.6 TENANT'S PRO RATA SHARE. "Tenant's Pro Rata Share" shall
mean the percentage derived by dividing the approximate square footage of the
Demised Premises, as set forth in Exhibit "A", by the approximate square footage
within the Building(s). Tenant's Pro Rata share on the date this Lease is
executed is set forth in Exhibit "A". Such percentage shall be appropriately
adjusted in the event of construction of additional Building(s) on the Land.
4.7 MONTHLY DEPOSITS. Tenant covenants and agrees to pay to
Landlord, monthly in advance, without notice, on each day that payment of
Monthly Rental is due, amounts ("Monthly Deposits"), as hereinafter specified,
for payment of Taxes and Assessments, as hereinafter defined, insurance
premiums, operating expenses, maintenance and repair expenses and other costs
and expenses relating to the Property and the Park payable by Tenant pursuant to
the terms of this Lease; and, if the Monthly Deposits are insufficient to pay
Tenant's Pro Rata Share of the actual Taxes and Assessments, insurance premiums,
operating expenses, maintenance and repair expenses and other costs and expenses
relating to the property and the Park, to pay to Landlord, within ten (10) days
after demand by Landlord, such amounts as are necessary to provide Landlord with
sufficient funds to pay Tenant's Pro Rata Share of the same. The Monthly
Deposits shall each be equal to Tenant's Pro Rata Share of 1/12 of the amounts,
as reasonably estimated by Landlord, of the annual Taxes and Assessments,
insurance premiums, operating expenses, maintenance and repair expenses and
other costs and expenses payable with respect to the Property and the Park. To
the extent the Monthly Deposits exceed Tenant's Pro Rata Share of the Actual
Taxes and Assessments, insurance premiums, operating expenses, maintenance and
repair expenses and other costs and expenses relating to the Property and the
Park, the excess amount shall, at Landlord's option, except AS MAY BE OTHERWISE
PROVIDED BY LAW, EITHER BE PAID TO TENANT OR CREDITED AGAINST THE NEXT
SUCCEEDING AMOUNTS PAYABLE BY TENANT UNDER THIS LEASE FOR MONTHLY DEPOSITS, BASE
RENT, ADDITIONAL RENT OR OTHER AMOUNTS. The amounts of Taxes and Assessments,
insurance premiums, operating expenses, maintenance and repair expenses and
other costs and expenses relating to the Property and the Park payable by Tenant
for the years in which the Lease Term commences and expires shall be subject to
the provisions hereinafter contained in this Lease for proration of such amounts
in such years. Prior to the dates on which payment is due for Taxes and
Assessments and insurance premiums, Landlord shall make payment of such Taxes
and Assessments and insurance premiums to the extent of funds from Monthly
Deposits available therefor and, upon request by Tenant', shall finish Tenant
with a copy of any receipt for such payments. Except for Landlord's obligation
to make payments out of funds available from Monthly Deposits, the making of
Monthly Deposits by Tenant shall not limit or alter Tenant's obligation to pay
Taxes and Assessments, to maintain insurance, to pay operating
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expenses and other costs and expenses relating to the Property and the Park
and to maintain and repair the Demised Premises as elsewhere provided in this
Lease.
4.8 INTENTIONALLY DELETED.
4.9 SECURITY DEPOSIT. At or prior to the Commencement Date,
Tenant shall deposit with Landlord the amount specified as a security deposit in
Exhibit "A" attached hereto ("Security Deposit"). The Security deposit shall be
retained by Landlord and may be applied by Landlord, to the extent necessary, to
pay and cover payment of rent or any other sum in default, any loss, cost,
damage or expense, including attorney's fees, sustained by Landlord by reason of
the failure of Tenant to comply with any provision, covenant, or agreement of
Tenant contained in this Lease. To the extent not necessary to cover such
delinquent payment, loss, cost, damage or expense, the Security Deposit shall be
returned to Tenant within sixty (60) days after expiration of the Lease Term or
as may be otherwise provided by law. The Security Deposit shall not be
considered as an advance payment of rent or as a measure of the loss, cost,
damage or expense which is or may be sustained by Landlord. In the event all or
any portion of the Security Deposit is applied by Landlord to pay any such
delinquent payment, loss, cost, damage or expense, Tenant shall, from time to
time, within five (5) days following demand, deposit with Landlord such amounts
as may be necessary to replenish the Security Deposit to its original amount.
Landlord's rights with respect to the Security Deposit shall be in addition to
and shall not preclude concurrent, alternative or successive exercise of any
other rights or remedies available to Landlord.
4.10 GENERAL PROVISIONS AS TO MONTHLY DEPOSITS AND SECURITY
DEPOSIT. Landlord shall be free to commingle the Monthly deposits and Security
Deposit with Landlord's own funds and Landlord shall not be obligated to pay
interest to Tenant on account of the Monthly Deposits or Security Deposit. In
the event of a transfer by Tenant of Tenant's interest in the Demised Premises,
Landlord shall be entitled to return the Monthly Deposits and Security Deposit
to Tenant's successor in interest, and Landlord shall thereupon be discharged
from any further liability with respect to the Monthly Deposits and Security
Deposit.
5. TAXES AND ASSESSMENTS
5.1 COVENANT TO PAY TAXES AND ASSESSMENTS. Tenant covenants and
agrees to pay, as Additional Rent, Tenant's Pro Rata Share of Taxes and
Assessments which are billed during any calendar year falling partly or wholly
within the Lease Term. "Taxes and Assessments" shall mean all taxes (other than
Landlord's income taxes), assessments and other impositions, general or special,
ordinary or extraordinary, of every kind or nature, which may be levied,
assessed or imposed upon or with respect to the Property or any part thereof, or
upon any building, improvements or personal property at any time situated
thereon.
5.2 PRORATION AT COMMENCEMENT AND EXPIRATION OF TERM. Taxes and
Assessments shall be prorated between Landlord and Tenant for the year in which
the Lease Term commences and for the year in which the Lease Term expires as of,
respectively, the Commencement Date and the date of expiration of the Lease
Term, except as hereinafter provided. Tenant shall be liable without proration
for the full
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amount of Taxes and Assessments relating to improvements, fixtures, equipment
or personal property installed by or on behalf of Tenant which are levied,
assessed, or attributable to the Lease Term. Proration of Taxes and
Assessments shall be made on the basis of actual Taxes and Assessments billed
during the calendar years of the Lease Term. Tenant's Pro Rata Share of
Taxes and Assessments for the years in which the Lease Term commences and
expires shall be paid and deposited with the Landlord through monthly
Deposits as hereinafter provided, but, in the event actual Taxes and
Assessments for either year are greater or less than as estimated for
purposes of Monthly Deposits, appropriate adjustment and payment shall be
made between the parties at the time the actual Taxes and assessments are
known, as may be necessary to accomplish proration, as herein provided.
5.3 SPECIAL ASSESSMENTS. In the event any Taxes or Assessments
are payable in installments over a period of years, Tenant shall be responsible
only for installments billed during the calendar years within the Lease Tenn
with proration, as above provided, of any installment payable prior to or after
expiration of the Lease Term.
5.4 ADDITIONAL TAXES. Tenant's obligation to pay Tenant's Pro
Rata Share of Taxes and Assessments shall include any Taxes and Assessments
presently in effect and any which may hereafter be levied, assessed or imposed
by any governmental authority upon Landlord or upon the Property if such Taxes
or Assessments shall be based upon or arise out of the ownership, use or
operation of, or the rents received from, the Property, other than income taxes
of Landlord.
5.5 LANDLORD'S SOLE RIGHT TO CONTEST TAXES. Landlord shall have
the sole right to contest any Taxes or Assessments. Tenant shall pay Tenant's
Pro Rata Share of all costs and expenses incurred by Landlord, including
attorneys' fees, in connection with any such contest, but Landlord shall pay to
or credit Tenant with Tenant's Pro Rata Share of any net abatement, reduction or
recovery of any Taxes and Assessments attributable to the Lease Term.
6. INSURANCE
6.1 CASUALTY INSURANCE. Landlord covenants and agrees to obtain
and keep in full force and effect during the Lease Term Casualty Insurance as
hereinafter defined. "Casualty Insurance" shall mean fire and extended coverage
insurance with respect to the Property, in an amount equal to the full
replacement cost of all Improvements, with coinsurance clauses of no less than
80%, and with coverage, at Landlord's option, by endorsement or otherwise, for
all risks, vandalism and malicious mischief, sprinkler leakage, boilers, and
rental loss, and with a deductible in an amount for each occurrence as Landlord,
in its sole discretion, may determine from time to time. Casualty Insurance
obtained by Landlord need not name Tenant as an insured party and may, at
Landlord's option, name any mortgagee or holder of a deed of trust as an insured
party as its interest may appear. Tenant covenants and agrees to pay its Pro
Rata Share of the cost of Casualty Insurance obtained by Landlord as Additional
Rent, payable pursuant to the provisions hereinabove for Monthly Deposits.
TENANT SHALL BE RESPONSIBLE FOR OBTAINING, AT TENANT'S OPTION, COST AND EXPENSE,
INSURANCE COVERAGE FOR THE PROPERTY OF TENANT LOCATED WITHIN THE DEMISED
PREMISES AND FOR BUSINESS INTERRUPTION OF TENANT. LANDLORD AND TENANT HEREBY
GRANT TO EACH OTHER ON THEIR OWN BEHALF AND ON BEHALF OF ANY INSURER PROVIDING
FIRE
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AND EXTENDED COVERAGE TO EITHER OF THEM COVERING THE IMPROVEMENTS, THE
DEMISED PREMISES, OR CONTENTS THEREOF, A WAIVER OF ANY CLAIM OF EITHER
AGAINST THE OTHER AND A WAIVER OF ANY RIGHT OF SUBROGATION WHICH ANY SUCH
INSURER OF ONE PARTY MAY ACQUIRE AGAINST THE OTHER BY VIRTUE OF A CASUALTY
COVERED BY SUCH INSURANCE OR BY VIRTUE OF PAYMENT OF LOSS UNDER ANY SUCH
INSURANCE. NEITHER PARTY, NOR ANYONE CLAIMING UNDER THEM BY WAY OF
SUBROGATION OR OTHERWISE, SHALL HAVE ANY INTEREST IN THE PROCEEDS OF
INSURANCE RECEIVED BY THE OTHER PARTY.
6.2 LIABILITY INSURANCE. Tenant covenants and agrees to obtain
and keep in full force and effect during the Lease Term, and to pay the premiums
and costs of, Liability Insurance as hereinafter defined. "Liability Insurance"
shall mean comprehensive general liability insurance covering public liability
with respect to the ownership, use and operation of the Demised Premises, with
limits of not less than $1,000,000 combined single limit of liability, which
coverage shall be primary with respect to Landlord, and with endorsements for
assumed contractual liability with respect to the liabilities assumed by Tenant
under Section 8.24 of this Lease, and with no deductible, retention or self-
insurance provision contained therein, unless otherwise approved in writing by
Landlord. Landlord covenants and agrees to obtain and keep in full force and
effect during the Lease Term liability insurance covering public liability with
respect to the ownership, use and operation of the Property including common
Facilities but excluding the Demised Premises and other premises leased to other
tenants, with limits of not less than $1,000,000 single limit of liability.
Tenant also covenants and agrees to pay Tenant's Pro Rata Share of the premiums
and costs of such liability insurance as Additional Rent, payable pursuant to
the provisions hereinabove for Monthly Deposits. Any comprehensive general
liability insurance carried by Landlord shall apply in excess of the primary
coverage required herein to be carried by Tenant.
6.3 GENERAL PROVISIONS RESPECTING INSURANCE. Except as
otherwise approved in writing by Landlord, all insurance obtained by Tenant
shall be on forms and with insurers licensed in the State of Minnesota and
selected or approved by Landlord, which approval shall not be unreasonably
withheld; shall name Landlord and the holder of any mortgage or deed or trust
encumbering the Property as insured parties, as their interests may appear; and
shall provide, by certificate of insurance or otherwise, that the insurance
coverage shall not be canceled or altered except upon 30 days prior written
notice to Landlord and the holder of any such mortgage or deed of trust.
Certificates of insurance obtained by Tenant shall be delivered to Landlord
prior to the commencement Date, and Landlord may deposit the same with the
holder of any such mortgage or deed of trust.
6.4 COOPERATION IN THE EVENT OF LOSS. Landlord and Tenant shall
cooperate with each other in the collection of any insurance proceeds which may
be payable in the event of any loss, including the execution and delivery of any
proof of loss or other actions required to effect recovery.
7. UTILITY, OPERATING, MAINTENANCE AND REPAIR SERVICE
7.1 UTILITY CHARGES. Tenant covenants and agrees to pay prior
to any delinquency all charges for water, sewage disposal, gas, electricity,
light, heat, power, telephone and other utility services used, rendered or
supplied to or for the Demised Premises and to contract for the same in
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Tenant's own name and to pay to Landlord within ten (10) days after each
billing or demand by Landlord, Tenant's Pro Rata share of any such charges
relating to Common Facilities. Tenant should not pay for any other utilities
that are not its own or related to the Common Facilities. Landlord shall not
be responsible for, and Tenant shall not be entitled to terminate this Lease
or to any abatement in rent due to, any interruption in utilities or other
services resulting from any cause whatsoever other than Landlord's own gross
negligence or willful misconduct.
7.2 OPERATING EXPENSES. Tenant covenants and agrees to pay all
costs and expenses of operations on or relating to the Demised Premises,
including costs and expenses for utilities, property management fees, (IN AN
AMOUNT NOT TO EXCEED MANAGEMENT FEES PAID FOR SIMILAR PROPERTIES IN THE AREA),
trash and garbage disposal, janitorial and cleaning services, gardening and
landscaping services, security services, pest control, removal of snow and ice
from parking areas, sidewalks and driveways serving the Demised Premises,
painting, replacement of damaged or broken glass and other breakable materials
in or serving the Demised Premises and replacement of lights and light fixtures
in or serving the Demised Premises and to contract for the same in Tenant's own
name; and to pay to Landlord, as Additional Rent payable pursuant to the
provisions hereinabove for Monthly Deposits, Tenant's Pro Rata Share of any such
costs and expenses incurred by Landlord relating to Common Facilities or which
are not separately allocated to premises in the Building(s) leased or held for
lease by Tenants.
7.3 MAINTENANCE AND REPAIR EXPENSES. Tenant covenants and
agrees to maintain, repair, replace and keep the Demised Premises and all
improvements fixtures and personal property thereon in good, safe and sanitary
condition, order and repair and in accordance with all applicable laws,
ordinances, orders, rules and regulations or governmental authorities having
jurisdiction, to pay all costs and expenses in connection therewith, and to
contract for the same in Tenant's own name; and to pay to Landlord, as
Additional Rent payable pursuant to the provisions hereinabove for Monthly
Deposits, Tenant's Pro Rata Share of any such costs and expenses incurred by
Landlord relating to Common Facilities or which are not separately allocated to
Premises in the Building(s) leased or held for lease to tenants. Such costs and
expenses as to Common Facilities may include the costs and expenses of
maintenance and upkeep of grass, trees, shrubs and landscaping, including
replanting where necessary; keeping parking areas, landscaped areas, sidewalks
and driveways free from litter, dirt, debris and obstructions, maintenance,
repair and replacement of roofs and Parking Area; and ordinary and necessary
maintenance and repair of the Property and Improvements. All maintenance and
repairs by Tenant shall be done promptly, in a good and workmanlike fashion, and
without diminishing the original quality of the Demised Premises or the
Property. Landlord shall be responsible for and shall bear the costs and
expenses of replacement of, or extraordinary maintenance and repairs to,
exterior walls and structural elements of the Building(s) and other
Improvements, unless such is caused by the act or neglect of Tenant, in which
case Tenant shall be responsible for and shall bear the costs and expenses of
same. TENANT IS RESPONSIBLE FOR ALL REPAIR AND REPLACEMENT IF NECESSARY OF THE
HVAC SYSTEM. IN THE EVENT THE CUMULATIVE COST OF SUCH REPAIR OR REPLACEMENT
COST EXCEEDS $2,000.00 DURING THE INITIAL LEASE TERM, LANDLORD WILL PAY THE COST
IN EXCESS OF $2,000.00. TENANT SHALL GET APPROVAL FROM LANDLORD PRIOR TO
INCURRING ANY SUCH EXPENSE.
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8. OTHER COVENANTS OF TENANT
8.1 LIMITATION ON USE BY TENANT. Tenant covenants and agrees
to use the Demised Premises only for the use or uses set forth as Permitted
Uses by Tenant on Exhibit "A" attached and for no other purpose.
8.2 COMPLIANCE WITH LAW. Tenant covenants and agrees that
nothing shall be done or kept on the Demised Premises in violation of any
law, ordinance, order, rule or regulation of any governmental authority
having jurisdiction and that the Demised Premises shall be used, kept and
maintained in compliance with any such law, ordinance, order, rule or
regulation and with the certificate of occupancy issued for the Building(s)
and the Demised Premises.
8.3 COMPLIANCE WITH INSURANCE REQUIREMENTS. Tenant covenants
and agrees that nothing shall be done or kept on the Demised Premises which
might impair the insurance maintained with respect to the Demised Premises or
the Property, which might increase the insured risks or which might result in
cancellation of any such insurance. Tenant shall comply with all
requirements pertaining to the use of the Demised Premises necessary for
maintenance of such insurance. If an increase many premiums for any
insurance maintained by Landlord is caused by Tenant's use of the Demised
Premises, then Tenant shall pay to Landlord on demand as additional rent the
amount of such increase.
8.4 NO WASTE OR IMPAIRMENT OF VALUE. Tenant covenants and
agrees that nothing shall be done or kept on the Demised Premises or the
Property which might impair the value of the Demised Premises or the
Property, or which would constitute waste.
8.5 NO HAZARDOUS USE. Tenant covenants and agrees that
nothing shall be done or kept on the Demised Premises or the Property and
that no improvements, changes, alterations, additions, maintenance or repairs
shall be made to the Demised Premises which might be unsafe or hazardous to
any person or property. Tenant shall not dispose, dump, discharge or release
any toxic wastes or toxic materials of any kind in or about the Demised
Premises or the Park.
8.6 NO STRUCTURAL OR ELECTRICAL OVERLOADING. Tenant
covenants and agrees that nothing shall be done or kept on the Demised
Premises or the Building(s) and that no improvements, changes, alterations,
additions, maintenance or repairs shall be made to the Demised Premises which
might impair the structural soundness of the Building(s), which might result
in an overload of electrical lines serving the Building(s) or which might
interfere with electric or electronic equipment in the Building(s) or on any
adjacent or nearby property. In the event of violations hereof, Tenant
covenants and agrees to immediately remedy the violation at Tenant's expense
and in compliance with all requirements of governmental authorities and
insurance underwriters.
8.7 NO NUISANCE, NOXIOUS OR OFFENSIVE ACTIVITY. Tenant
covenants and agrees that no noxious or offensive activity shall be carried
on upon the Demised Premises or the Property nor shall anything be done or
kept on the Demised Premises or the Property which may be or become a public
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or private nuisance or which may cause embarrassment disturbance, or
annoyance to others in the Building(s) or on adjacent or nearby property.
8.8 NO ANNOYING LIGHTS, SOUNDS OR ODORS. Tenant covenants
and agrees that no light shall be emitted from the Demised Premises which is
unreasonably bright or causes unreasonable glare; no sound shall be emitted
from the Demised Premises which is unreasonably loud or annoying; and no odor
shall be emitted from the Demised Premises which is or might be noxious or
offensive to others in the Building(s) or on adjacent or nearby property.
8.9 NO UNSIGHTLINESS. Tenant covenants and agrees that no
unsightliness shall be permitted on the Demised Premises or the Property
which is visible from any adjacent or nearby property. Without limiting the
generality of the foregoing, all unsightly equipment, objects and conditions
shall be kept enclosed within the Demised Premises; no refuse, scrap, debris,
garbage, trash, bulk materials, or waste shall be kept, stored or allowed to
accumulate on the Demised Premises or the Property except as may be enclosed
within the Demised Premises; all pipes, wires, poles, antennae and other
facilities for utilities or the transmission or reception of audio or visual
signals or electricity shall be kept and maintained underground or enclosed
within the Demised Premises or appropriately screened from view; and no
temporary structure shall be placed or permitted on the Demised Premises of
the Property without the prior written consent of Landlord.
8.10 NO ANIMALS. Tenant covenants and agrees that no animals
shall be permitted or kept on the Demised Premises or the Property.
8.11 RESTRICTION ON SIGNS AND EXTERIOR LIGHTING. Tenant
covenants and agrees that no signs or advertising devices of any nature shall
be erected or maintained by Tenant on the Demised Premises or the Property,
and no exterior lighting shall be permitted on the Demised Premises or the
Property except as approved in writing by Landlord. All building signage
shall conform to the existing building signage and shall be installed and
paid for by Tenant.
8.12 NO VIOLATION OF COVENANTS. Tenant covenants and agrees
not to commit, suffer or permit any violation of any covenants, conditions or
restrictions affecting the Demised Premises, the Property or the Park.
8.13 RESTRICTION ON CHANGES AND ALTERATIONS. Tenant covenants
and agrees not to improve, change, alter, add to, remove or demolish any
improvements on the Demised Premises ("Changes"), without the prior written
consent of Landlord (which consent shall not be unreasonably withheld with
respect to interior, non-structural changes), and unless Tenant complies with
all conditions which may be imposed by Landlord, in its also discretion in
connection with such consent, and unless Tenant pays to Landlord the
reasonable costs and expenses of Landlord for architectural, engineering and
other consultants which may be reasonably incurred by Landlord in determining
whether to approve any such Changes and in inspecting such Changes. If such
consent is given, no such Changes shall be permitted unless Tenant shall have
procured and paid for all necessary permits and authorizations from any
governmental authorities having jurisdiction; unless such changes will not
reduce the value
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of the Property, and will not affect or impair existing insurance on the
Property; and unless Tenant, at Tenant's sole cost and expense, shall
maintain or cause to be maintained workmen's compensation insurance covering
all persons employed in connection with the work and shall obtain liability
insurance covering any loss or damage to persons or property arising in
connection with any such Changes and such other insurance and bonds as
Landlord may reasonably require. Tenant covenants and agrees that any such
Changes approved by Landlord shall be completed with due diligence and in
good and workmanlike fashion and in compliance with all conditions imposed by
Landlord and all applicable permits, authorizations, laws, ordinances,
orders, rules and regulations of governmental authorities having jurisdiction
and that the costs and expenses with respect to such Changes shall be paid
promptly when due and that the Changes shall be accomplished free of liens of
mechanics and materialmen. Tenant covenants and agrees that all such Changes
shall become the property of Landlord at the expiration of the Lease Tenn or,
if landlord so requests, Tenant shall, at or prior to expiration of the Lease
Term and at its sole cost and expense, remove such Changes and restore the
Demised Premises to their condition prior to such Changes.
8.14 NO MECHANICS' LIENS. Tenant covenants and agrees not to
permit or suffer, and to cause to be removed and released, any mechanics,
materialmen or other lien on account of supplies, machinery, tools,
equipment, labor or material furnished or used in connection with the
construction or repair of or Changes to the Demised Premises by or on behalf
of Tenant. If any such lien is filed, Tenant shall within ten (10) days
thereafter, at its expense, cause the lien to be fully charged by either
paying the obligation secured thereby in fall or in accordance with the
provisions of Minn. Stat. '514.10. If Tenant elects to release the lien
pursuant to Minn. Stat. '514.10 in lieu of payment, Tenant shall have the
right to contest, in good faith and with reasonable diligence, the validity
of any such obligation secured by the lien or claimed lien, provided that
tenant shall give to Landlord such additional security as may be reasonably
requested by Landlord to insure the payment of any amounts claimed, including
interests and costs, and to prevent any sale, foreclosure or forfeiture of
any interest in the Property on account of any such hen and provided that, on
final determination of the obligation secured by the lien or claim for lien,
Tenant shall immediately pay any judgement rendered.
Tenant is not authorized to act for or on behalf of Landlord as its
agent, or otherwise, for the purpose of constructing any improvements to the
Demised Premises, and neither Landlord nor Landlord's interest in the Demised
Premises shall be subject to any obligations incurred by Tenant. Landlord
shall be entitled, but not obligated, to post on the Demised Premises during
the course of any construction by Tenant such notices of non-responsibility
as Landlord deems appropriate, and tenant shall not remove or permit removal
of any such notices. Tenant shall, at least five (5) days before the
commencement of any work which might result in such lien, give to Landlord
written notice thereof.
8.15 NO OTHER ENCUMBRANCES. Tenant covenants and agrees not
to obtain any financing secured by Tenant's interest in the Demised Premises
and not to encumber the Demised Premises or Landlord's or Tenant's interest
therein without the prior written consent of Landlord, and to keep the
Demised premises free from all liens and encumbrances except liens and
encumbrances created by Landlord.
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8.16 SUBORDINATION TO LANDLORD MORTGAGES. Tenant covenants
and agrees that, at Landlord's option, this Lease and Tenant's interest in
the Demised Premises shall be junior and subordinate to any mortgage or deed
of trust now or hereafter encumbering the Property provided that, as to any
mortgage or deed of trust given hereafter, the mortgagee or beneficiary under
such mortgage or deed of trust agrees in writing, or adequate provision is
made in the mortgage or trust, that, in the event of foreclosure of any such
mortgage or deed of trust, Tenant shall not be disturbed in its possession of
the Demised Premises, provided only that Tenant shall attorn to the party
acquiring title to the Property as the result of such foreclosure. No act or
further agreement by Tenant shall be necessary to establish the subordination
of this Lease to any such mortgage or deed of trust, but Tenant covenants and
agrees, upon request of Landlord, to execute such documents as may be
necessary or appropriate to confirm and establish this Lease as subordinate
to any such mortgage or deed of trust in accordance with the foregoing
provisions. Alternatively, Tenant covenants and agrees that, at Landlord's
option, Tenant shall execute documents as may be necessary to establish this
Lease and Tenant's interest in the Demised Premises as superior to any such
mortgage or deed of trust. If Tenant fails to execute any documents required
to be executed by Tenant under the provisions hereof, Tenant hereby makes,
constitutes and irrevocably appoints Landlord as Tenant's attorney in fact
and in Tenant's name, place and stead to execute any such documents.
8.17 NO ASSIGNMENT OR SUBLETTING. Tenant covenants and agrees
not to make or permit a Transfer, as hereinafter defined, by Tenant or by any
assignee or subtenant, without Landlord's prior written consent, which
consent shall not be unreasonably withheld provided such Transfer shall not
relieve Tenant of any of its obligations under this Lease. A "Transfer"
shall include a sublease of all or any part of the Demised Premises, any
assignment, sublease, transfer, mortgage, pledge or encumbrance of all or any
part of the Tenant's interest under this Lease or in the Demised Premises, by
operation of law or otherwise, and the use of occupancy of all or any part of
the Demised Premises by anyone other than tenant. Any such Transfer without
Landlord's written consent shall be void, at Landlord's option, and shall
constitute a default under this Lease. In the event Landlord consents to any
Transfer, Tenant shall not be relieved of its obligations under this Lease
and Tenant shall remain liable, jointly and severally and as a principal, and
not as a guarantor or surety, under this Lease, to the same extent as though
no transfer had been made, unless specifically provided to the contrary in
Landlord's prior written consent. The acceptance of rent by Landlord from
any person other than Tenant shall not be deemed to be a waiver by Landlord
of the provisions of this Section or of any other provision of this Lease,
and any consent by Landlord to a Transfer shall not be deemed a consent to
any subsequent Transfer.
Notwithstanding the foregoing, Landlord shall, at Landlord's option,
have the right, in lieu of consenting to a Transfer, to terminate this Lease
as to the portion of the Demised Premises as is subject to the proposed
Transfer and to enter into a new lease with the proposed transferee and
receive directly from the proposed transferee the consideration agreed to be
given by such transferee for the transfer. The termination of this Lease
pursuant to any provision contained herein or otherwise shall, at Landlord's
provision contained herein or otherwise shall, at Landlord's option,
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either terminate any or all existing subleases hereunder or operate as an
assignment to Landlord of any such subleases.
In the event Landlord consents to a Transfer, any option to renew this
Lease or right to extend the Lease Term shall automatically terminate unless
otherwise agreed in writing by Landlord.
Tenant covenants and agrees to pay to Landlord, within ten (10) days
after demand by Landlord, the reasonable costs and expenses of Landlord in
connection with any request for consent to a Transfer, including reasonable
attorneys' fees, whether or not consent of Landlord is given to the Transfer.
8.18 ANNUAL FINANCIAL STATEMENTS. Tenant covenants and agrees
to furnish to Landlord annually, within ninety (90) days after the end of
each fiscal year of tenant, copies of financial statements of Tenant audited,
if requested by Landlord, by a certified public accountant and agrees that
Landlord may deliver any such financial statements to any existing or
prospective mortgagee or purchaser of the Property. The financial statements
shall include a balance sheet as of the end of, and a statement of profit and
loss for, the preceding fiscal year and Tenant and, if regularly prepared by
Tenant, a statement of sources and use of funds for the preceding fiscal year
of Tenant.
8.19 PAYMENT OF INCOME AND OTHER TAXES. Tenant covenants and
agrees to pay promptly when due all personal property taxes on personal
property of Tenant on the Demised Premises and all federal, state and local
income taxes, sales taxes, use taxes, Social Security taxes, unemployment
taxes and taxes withheld from wages or salaries paid to Tenant's employees,
the nonpayment of which might give rise to a lien on the Demised Premises or
Tenant's interest therein, and to furnish, if requested by Landlord, evidence
of such payments. If Tenant's fixtures, furnishings, equipment and other
personal property are assessed together with the Property, Tenant shall pay
to Landlord tenant's taxes due thereon as determined by Landlord within ten
(10) days after delivery to Tenant of a written statement indicating the
amount of such taxes applicable to Tenant's property.
8.20 ESTOPPEL CERTIFICATES. Tenant covenants and agrees to
execute, acknowledge and deliver to Landlord upon Landlord's written request,
a written statement certifying that this Lease is unmodified (or, if
modified, stating the modifications) and in full force and effect; stating
the dates to which Base Rent and Additional Rent have been paid; stating the
amount of the Security Deposit held by Landlord; stating the amount of
Monthly Deposits then being paid by Tenant; and stating whether or not
Landlord is in default under this Lease (and, if so, specifying the nature of
the default). Tenant agrees that such statement may be delivered to and
relied upon by any existing or prospective mortgagee or purchaser of the
Property. Tenant agrees that a failure to deliver such a statement within
ten (10) days after written request from Landlord shall be conclusive upon
Tenant that this Lease is in full force and effect without modification
except as may be represented by Landlord; that there are no uncured defaults
by Landlord under this Lease; and that any representation by Landlord with
respect to Base Rent, Additional Rent, the Security Deposit and Monthly
Deposits are true.
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8.21 LANDLORD'S RIGHT TO INSPECT AND SHOW PREMISES AND TO
INSTALL FOR SALE SIGNS. Tenant covenants and agrees that Landlord and the
authorized representatives of Landlord shall have the right to enter the
Demised Premises at any reasonable time during ordinary business hours UPON
REASONABLE NOTICE TO TENANT or at any time in the event of any emergency for
the purposes of inspecting, repairing or maintaining the same or performing
any obligations of Tenant which Tenant has failed to perform hereunder or for
the purposes of showing the Demised Premises to any existing or prospective
mortgagee, purchaser or lessee of the Property or the Demised Premises.
TENANT SHALL HAVE THE RIGHT TO ACCOMPANY LANDLORD AND AUTHORIZED
REPRESENTATIVES OF LANDLORD WHILE ON THE PREMISES EXCEPT IN THE CASE OF AN
EMERGENCY. Tenant covenants and agrees that Landlord may, at any time and
from time to time, place on the Property and DURING THE LAST SIX (6) MONTHS
OF THE LEASE ON the Demised Premises a sign advertising the Property or the
Demised Premises for sale or lease.
8.22 LANDLORD TITLE TO FIXTURES, IMPROVEMENTS AND EQUIPMENT.
Tenant covenants and agrees that all fixtures and improvements on the Demised
Premises and all equipment and personal property relating to the use and
operation of the Demised Premises (as distinguished from operations incident
to the business of Tenant), including all plumbing, heating, lighting,
electrical and air conditioning fixtures and equipment, whether or not
attached to or affixed to the Demised Premises, and whether now or hereafter
located upon the Demised Premises, shall be and remain the property of
Landlord upon expiration of the Lease Term.
8.23 REMOVAL OF TENANT'S EQUIPMENT. Tenant covenants and
agrees to remove, at or prior to the expiration of the Lease term, all of
Tenant's Equipment, as hereinafter defined. "Tenant's Equipment" shall mean
all equipment, apparatus, machinery, signs, furniture, furnishings and
personal property used in the operation of the business of Tenant (as
distinguished from the use and operation of the Demised Premises). If such
removal shall injure or damage the Demised Premises, Tenant covenants and
agrees, at its sole cost and expense, at or prior to the expiration of the
Lease Term, to repair such injury and damage in good and workmanlike fashion
and to place the Demised Premises in the same condition as the Demised
Premises would have been if such Tenant's Equipment had not been installed.
If Tenant fails to remove any Tenant's Equipment by the expiration of the
Lease Term, Landlord may, at its option, keep and retain any such Tenant's
Equipment or dispose of the same and retain any proceeds thereof, and
Landlord shall be entitled to recover from Tenant any costs or expenses of
Landlord in removing the same and in restoring the Demised Premises in excess
of the actual proceeds, if any, received by Landlord from disposition thereof.
8.24 TENANT INDEMNIFICATION OF LANDLORD. SUBJECT TO THE
WAIVER OF CLAIMS AND SUBROGATION CONTAINED IN SECTION 6.1 OF THE LEASE,
Tenant covenants and agrees to protect, indemnify and save Landlord harmless
from and against all liability, obligations, claims, damages, penalties,
causes of action, costs and expenses, including attorneys' fees, imposed
upon, incurred by or asserted against Landlord by reason of (a) any accident,
injury to or death or any person or loss of or damage to any property
occurring on or about the Demised Premises; (b) any act or omission of Tenant
or Tenant's officers, employees, agents, guests or invitees or of anyone
claiming by, through or under Tenant; (c) any use which may be made of, or
condition existing upon, the Demised
14
Premises; (d) any improvements, fixtures or equipment upon the Demised
Premises; (e) any failure on the part of Tenant to perform or comply with any
of the provisions, covenants or agreements of Tenant contained in this Lease;
(f) any violation by Tenant or Tenant's officers, employees, agents, guests
or invitees or by anyone claiming by, through or under Tenant of any law,
ordinance, order, rule or regulation of governmental authorities having
jurisdiction or of any covenant, condition or restriction affecting the Park;
and (g) any repairs, maintenance or Changes to the Demised Premises made by
or on behalf of Tenant. Tenant further covenants and agrees that, in case
any action, suit or proceeding is brought against Landlord by reason of any
of the foregoing, Tenant will, at Tenant's sole cost and expense, defend
Landlord in any such action, suit or proceeding.
8.25 WAIVER BY TENANT. Tenant waives and releases any claims
Tenant may have against Landlord or Landlord's officers, agents or employees
for loss, damage or injury to person or property sustained by Tenant or
Tenant's officers, agents, employees, guests, invitees or anyone claiming by,
through or under Tenant resulting from any cause whatsoever other than gross
negligence or willful misconduct of Landlord or its officers, agents or
employees.
8.26 RELEASE UPON TRANSFER BY LANDLORD. In the event of a
transfer by Landlord of the Property or of Landlord's interest as Landlord
under this Lease, Landlord's successor or assign shall take subject to and be
bound by this Lease and, in such event, Tenant covenants and agrees that
Landlord shall be released from all obligations of Landlord under this Lease,
except obligations which arose and matured prior to such transfer by
Landlord; that Tenant shall thereafter look solely to Landlord's successor or
assign for satisfaction of the obligations of Landlord under this Lease; and
that, upon demand by Landlord or Landlord's successor or assign, Tenant shall
attorn to such successor or assign.
9. DAMAGE OR DESTRUCTION
9.1 TENANT'S NOTICE OF DAMAGE. If any portion of the Demised
Premises shall be damaged or destroyed by fire or other casualty, Tenant
shall give prompt written notice thereof to Landlord ("Tenant's Notice of
Damage").
9.2 OPTIONS TO TERMINATE IF DAMAGE SUBSTANTIAL. Upon receipt
of Tenant's Notice of Damage, Landlord shall promptly proceed to determine
the nature and extent of the damage or destruction and the sufficiency of
insurance proceeds to repair and restore and to estimate the time necessary
to repair and restore the Demised Premises. As soon as reasonably possible,
Landlord shall give written notice to Tenant stating whether the insurance
proceeds are sufficient to repair and restore and, if so, Landlord's estimate
of the time necessary to repair and restore the Demised Premises ("Landlord's
notice of Repair Time"). If Landlord reasonably estimates that insurance
proceeds are insufficient to repair and restore and Landlord does not intend
to advance such deficiency or if repair and restoration of the Demised
Premises cannot be completed within 180 days from the time of Tenant's Notice
of Damage, Landlord and Tenant shall each have the option to terminate this
Lease.
15
Any option granted hereunder shall be exercised by written notice to the
other party given within ten (10) days after Landlord's Notice of Repair
Time. In the event either Landlord or Tenant exercises its option to
terminate this Lease, the Lease Term shall expire ten (10) days after the
notice by either Landlord or Tenant exercising such party's option to
terminate this Lease. In the event of termination of this Lease under the
provisions hereof, Landlord shall refund to Tenant such amounts of Base Rent
and Additional Rent theretofore paid by Tenant as may be applicable to the
period subsequent to the time of Tenant's Notice of Damage less the
reasonable value of any use or occupation of the Demised Premises by Tenant
subsequent to the time of Tenant's Notice of Damage.
9.3 OBLIGATIONS TO REPAIR AND RESTORE. In the event there
are sufficient funds to repair and restore, and repair and restoration of the
Demised Premises can, in Landlord's reasonable estimation, be completed
within 180 days from the time of Tenant's Notice of Damage as specified in
Section 9.2, this Lease shall continue in full force and effect and Landlord
shall proceed to cause the Demised Premises (excluding improvements, fixtures
and personal property not owned by Landlord) to be repaired and restored with
reasonable diligence, and there shall be abatement of Base Rent and
Additional Rent proportionate to the extent of the space and period of time
that Tenant is unable to use and enjoy the Demised Premises.
9.4 APPLICATION OF INSURANCE PROCEEDS. The proceeds of any
Casualty Insurance maintained on the Demised Premises, other than casualty
insurance maintained by Tenant on fixtures and personal property of Tenant,
shall be paid to and become the property of Landlord. WHETHER OR NOT THIS
LEASE IS TERMINATED PURSUANT TO SECTION 9.2, THE AMOUNT DEDUCTIBLE FROM
INSURANCE PROCEEDS WITH RESPECT TO CASUALTY LOSS SHALL BE PAYABLE AS
ADDITIONAL RENT DUE FROM TENANT TO LANDLORD DURING THE TERM OF THE LEASE AS
PROVIDED IN SECTIONS 4.5, 4.6 AND 4.7 HEREOF.
10. CONDEMNATION
10.1 TAKING--SUBSTANTIAL TAKING--INSUBSTANTIAL TAKING. A
"Taking" shall mean the taking of all or any portion of the Demised Premises
as a result for the exercise of the power of eminent domain or condemnation
for public or quasi-public use or the sale of all or part of the Demised
Premises under the threat of condemnation. A "Substantial Taking" shall mean
a Taking of so much of the Demised Premises that the Demised Premises cannot
thereafter be reasonably used by Tenant for carrying on, at substantially the
same level or scope, the business theretofore conducted by Tenant on the
Demised premises, or a taking which the award therefore retained by Landlord
is in Landlord's reasonable estimate insufficient to restore the Demised
Premises and Property to a condition as near as possible to the original
condition thereof and if Landlord does not intend to advance such deficiency.
As "Insubstantial Taking" shall mean a Taking such that the Demised Premises
can thereafter continue to be used by Tenant for carrying on, at
substantially the same level and scope, the business theretofore conducted by
Tenant on the Demised Premises and, as aforesaid, the award is sufficient for
restoration.
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10.2 TERMINATION ON SUBSTANTIAL TAKING. If there is a
Substantial Taking with respect to the Demised Premises, the Lease Term shall
expire on the date of vesting of title pursuant to such Taking. In the event
of termination of this Lease under the provisions hereof, Landlord shall
refund to Tenant such amounts of Base Rent and Additional Rent theretofore
paid by Tenant as may be applicable to the period subsequent to the time of
termination of this Lease.
10.3 RESTORATION OF INSUBSTANTIAL TAKING. In the event of an
Insubstantial Taking, this Lease shall continue in full force and effect,
Landlord shall proceed forthwith to cause the Demised Premises to be restored
as near as may be to the original condition thereof and there shall be
abatement of Base Rent and Additional Rent proportionate to the extent of the
space so taken.
10.4 RIGHT OF AWARD. The total award, compensation, damages
or consideration received or receivable as a result of a Taking ("Award")
shall be paid to and be the property of Landlord, whether the Award shall be
made as compensation for diminution of the value of the leasehold or the fee
of the Demised Premises or otherwise, and Tenant hereby assigns to Landlord
all of Tenant's right, title and interest in and to any such Award. Tenant
covenants and agrees to execute, immediately upon demand by Landlord, such
documents as may be necessary to facilitate collection by Landlord of any
such Award.
11. DEFAULTS BY TENANT
11.1 DEFAULTS GENERALLY. Each of the following shall
constitute a "Default by Tenant" under this Lease:
11.2 FAILURE TO PAY RENT OR OTHER AMOUNTS. A default by
Tenant shall exist if Tenant fails to pay when due Base Rent, Additional
Rent, Monthly Deposits, or any other amounts payable by Tenant under the
terms of this Lease, and such failure shall continue for five (5) days after
written notice from Landlord to Tenant of such failure; provided, however,
that Tenant shall not be entitled to more than two (2) notices of such
failure during any twelve-month period and if, after two (2) such notices are
given in any twelve-month period, Tenant fails during such twelve-month
period to pay such amounts when due, such failure shall constitute a Default
by Tenant without further notice by Landlord.
11.3 VIOLATION OF LEASE TERM. A Default by Tenant shall exist
if Tenant breaches or fails to comply with any agreement, term, covenant or
condition in this Lease applicable to Tenant, and such breach or failure to
comply continues for a period of twenty (20) days after notice thereof by
Landlord to Tenant, or, if such breach or failure to comply cannot be
reasonably cured within such twenty-day period, if Tenant shall not in good
faith commence to cure such breach or failure to comply within such twenty
day period or shall not diligently proceed therewith to completion.
11.4 NON-OCCUPANCY OF DEMISED PREMISES. A Default by Tenant
shall exist if Tenant shall fail to occupy and use the Demised Premises
within fifteen (15) days after commencement of the
17
Lease Term or shall leave the Demised Premises unoccupied for fifteen (15)
consecutive days or shall vacate and abandon the Demised Premises.
11.5 TRANSFER OF INTEREST WITHOUT CONSENT. A Default by
Tenant shall exist if Tenant's interest under this Lease or in the Demised
Premises shall be transferred to or pass to or devolve upon any other party
without Landlord's prior written consent.
11.6 EXECUTION AND ATTACHMENT AGAINST TENANT. A Default by
Tenant shall exist if Tenant's interest under this Lease or in the Demised
Premises shall be taken upon execution or by other process of law directed
against Tenant, or shall be subject to any attachment at the instance of any
creditor or claimant against Tenant and said attachment shall not be
discharged or disposed of within fifteen (15) days after the levy thereof.
11.7 BANKRUPTCY OR RELATED PROCEEDINGS. A Default by Tenant
shall exist if Tenant shall file a petition in bankruptcy or insolvency or
for reorganization or arrangement under the bankruptcy laws of the United
States or under any similar act of any state, or shall voluntarily take
advantage of any such law or act by answer or otherwise, or shall be
dissolved or shall make an assignment for the benefit or creditors or if
involuntary proceedings under any such bankruptcy or insolvency law or for
the dissolution of Tenant shall be instituted against Tenant or a receiver or
trustee shall be appointed for the Demised Premises or for all or
substantially all of the property of Tenant, and such proceedings shall not
be dismissed or such receivership or trusteeship vacated within sixty (60)
days after such institution or appointment.
12. LANDLORD'S REMEDIES
12.1 REMEDIES GENERALLY. Upon the occurrence of any default
by Tenant, Landlord shall have the right, at Landlord's election, then or at
any time thereafter, to exercise any one or more of the following remedies.
12.2 CURE BY LANDLORD. In the event of a Default by Tenant,
Landlord may, at Landlord's option, but without obligation to do so, and
without releasing Tenant from any obligations under this Lease, make any
payment or take any action as Landlord may deem necessary or desirable to
cure any such Default by Tenant in such manner and to such extent as Landlord
may deem necessary or desirable. Landlord may do so upon prior written
notice to Tenant, except in the case of an emergency, and without giving
Tenant an opportunity to cure such Default by Tenant. Tenant covenants and
agrees to pay to Landlord, immediately upon demand, all advances, costs and
expenses of Landlord in connection with the making of any such payment or the
taking of any such action, including reasonable attorneys' fees, together
with interest as hereinafter provided, from the date of payment of any such
advances, costs and expenses by Landlord. Action taken by Landlord may
include commencing, appearing in, defending or otherwise participating in any
action or proceeding and paying, purchasing, contesting or comprising any
claim, right, encumbrance, charge or lien with respect to the Demised
Premises which Landlord, in its discretion, may deem necessary or desirable
to protect its interest in the Demised Premises and under this Lease.
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12.3 REMEDIES OF LANDLORD. In the event of Default by Tenant,
Landlord may elect to either (i) terminate this Lease or (ii) terminate
Tenant's right to possession only without termination Tenant's continued
liability under this Lease. No reentry or taking possession of the Demised
Premises by Landlord shall be construed as an election by Landlord to
terminate this Lease unless a written notice of such intention is given to
Tenant. No notice from Landlord hereunder or under a forcible entry and
detainer statute or similar law shall constitute an election by Landlord to
terminate this Lease unless such notice specifically so states.
Notwithstanding the fact that Landlord initially elects under (ii) to
terminate Tenant's right to possession only, Landlord shall have the
continuing right to terminate this Lease by giving Tenant three (3) days'
written notice of such further election, and shall have the right to pursue
any remedy at law or in equity that may be available to Lessor.
In the event of election to terminate Tenant's right to possession only
Landlord may, at Landlord's option enter in the Demised Premises and take and
hold possession thereof, without such entry into possession termination this
Lease or releasing Tenant in whole or in part from Tenant's obligation to pay
all amounts hereunder for the full stated Lease Term. Upon such re-entry,
Landlord may remove all persons and property from the Demised Premises and
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant, without Landlord becoming liable
for any loss or damage which may be occasioned thereby. Such re-entry shall
be conducted without resort to judicial process or notice of any kind if
Tenant has abandoned or voluntarily surrendered possession of the Demised
Premises, and otherwise by resort to judicial process. Upon and after entry
into possession without termination of this Lease, Landlord may, but is not
obligated to, relet the Demised Premises, or any part thereof, for such time
and upon such terms as Landlord, in Landlord's sole discretion, shall
determine. Landlord may alter, repair and redecorate the Demised Premises as
Landlord deems desirable to facilitate reletting the Demised Premises.
Upon such re-entry, Tenant shall be liable to Landlord as follows:
A. For all reasonable attorneys' fees incurred by
Landlord in connection with exercising any remedy hereunder;
B. For the unpaid installments of Base Rent,
Additional Rent and other unpaid sums which were due prior to
such re-entry, which sums shall be payable immediately;
C. For the installments of Base Rent, Additional Rent
and other sums falling due pursuant to the provision of this
Lease for the period after reentry during which the Demised
Premises remain vacant, which sums shall be payable as they
become due hereunder;
D. For all expenses incurred in re-leasing the
Demised Premises, including leasing commissions, attorneys' fees,
and costs of alterations, repairs and redecorating, which
expenses shall be payable as they are incurred by Landlord;
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E. While the Demised Premises are subject to any new
lease or leases made pursuant to this paragraph, for the amount
by which the monthly installments received by Landlord pursuant
to such new lease or leases is less than the monthly installment
for all charges payable pursuant to this Lease, which
deficiencies shall be payable monthly. If the net amount
recovered by Landlord for such reletting excess the amounts due
by Tenant hereunder, Tenant shall have no right to such excess
amount and such excess amount shall belong to Landlord; and
F. For interest on all the above sums at the rate set
forth in Paragraph 12.7 hereof.
Notwithstanding Landlord's election to terminate Tenant's right to
possession only, and notwithstanding any reletting without termination,
Landlord, at any time thereafter, may elect to terminate their Lease, and to
recover from Tenant in lieu of the amounts which would thereafter be payable
pursuant to the foregoing, as damages for loss of the bargain and not as a
penalty, an aggregate sum which, at the time of such termination of this
Lease, represents the excess, if any, of (b) the aggregate of the Base Rent,
Additional Rent and all other sums payable by Tenant hereunder that would
have accrued for the balance of the Lease Term, over (b) the aggregate rental
value of the Demised Premises for the balance of the Lease Term, both
discounted to present worth at the rate of eight percent (8%) per annum.
12.4 LANDLORD'S LIEN AND ENFORCEMENT. Tenant hereby grants to
Landlord a security interest in all personal property, equipment and fixtures
of Tenant now or hereafter located on the Demised Premises as security for
the performance of Tenant's obligations under this Lease. Tenant covenants
and agrees, upon request by Landlord from time to time, to execute and
deliver such financing statements as may be necessary or desirable to perfect
the security interest hereby granted. In the event of a Default by Tenant,
Landlord may foreclose the security interest hereby granted in any manner
permitted by law. NOTWITHSTANDING THE FOREGOING, LANDLORD ACKNOWLEDGES THAT
ANY SECURITY INTEREST GRANTED BY TENANT TO THIRD PARTIES COVERING INVENTORY,
PERSONAL PROPERTY AND EQUIPMENT OF TENANT FOR PURPOSES OF FINANCING THE
ACQUISITION OR OWNERSHIP OF THAT PROPERTY OR THE OPERATION OF TENANT'S
BUSINESS SHALL BE PRIOR TO THE LIEN GRANTED TO LANDLORD HEREUNDER. LANDLORD
AGREES, UPON REQUEST OF TENANT, TO EXECUTE THE DELIVERY OF ANY SUBORDINATION
AGREEMENTS AS MAY BE NECESSARY OR DESIRABLE TO SUBORDINATE LANDLORD'S
INTEREST TO SUCH OTHER SECURITY INTERESTS AS MAY BE GRANTED BY TENANT
HEREUNDER.
12.5 SUITS BY LANDLORD. Actions or suits for the recovery of
amounts and damages payable under this Lease may be brought by Landlord, from
time to time, at Landlord's election, and Landlord shall not be required to
await the date upon which the Lease Term would have expired to bring any such
action or suit.
12.6 RECOVERY OF LANDLORD ENFORCEMENT COSTS. All costs and
expenses incurred by Landlord in connection with collection any amounts and
damages owing by Tenant pursuant to the provisions of this Lease or to
enforce any provision of this Lease shall be paid by Tenant to Landlord
20
upon demand, including reasonably attorneys' fees whether or not any action
is commenced by Landlord, which fees shall be determined by the court and not
by a jury if related to an action.
12.6 INTEREST ON PAST DUE PAYMENTS AND ADVANCES. Tenant
covenants and agrees to pay to Landlord interest on demand at the rate of
five percent (5%) above the "Prime Rate", as hereinafter defined, on the
amount of any Monthly Rent Monthly Deposit or any other amount due hereunder
which is not paid when due, from the date due and payable, and on the amount
of any payment made by Landlord required to have been made by Tenant under
this Lease and on the amount of any costs and expenses, including reasonable
attorneys' fees, paid by Landlord in connection with the taking of any action
to cure any Default by Tenant, from the date of making any such payment or
the advancement of such costs and expenses by Landlord. "Prime Rate" shall
mean the rate charged by Norwest Bank Minnesota, N.A. (the "Bank"), or other
bank as hereinafter provided, at the time said Monthly Rent or Monthly
Deposit was due and payable or at the time of making any such payment or the
advancement of such costs and expenses by Landlord as aforesaid, on
ninety-day loans to commercial borrowers of nationally recognized and
unquestioned credit as announced by the Bank from time to time, but not in
excess of the maximum amount of finance charge permissible under applicable
law. In the event that the Bank discontinues the use of a Prime Rate, the
Prime Rate being charged by any other national banking association located in
Minneapolis or St. Xxxx, Minnesota, as selected by Landlord in its sole
discretion, shall be used for computing the interest rate under this Section.
12.7 LANDLORD'S BANKRUPTCY REMEDIES. Nothing contained in this
Lease shall limit or prejudice the right of Landlord to provide and obtain as
liquidated damages in any bankruptcy, insolvency, receivership,
reorganization or dissolution proceeding, an amount equal to the maximum
allowable by any statute or rule or law governing such proceeding in effect
at the time when such damages are to be proved, whether or not such amount be
greater, equal or less than the amounts recoverable, either as damages or
rent, under this Lease.
12.8 REMEDIES CUMULATIVE. Exercise of any or the remedies of
Landlord under this Lease shall not prevent the concurrent or subsequent
exercise of any other remedy provided for in this Lease or otherwise
available to Landlord at law or in equity.
13. SURRENDER AND HOLDING OVER
13.1 SURRENDER UPON LEASE EXPIRATION. Upon the expiration or
earlier termination of this Lease, or on the date specified in any demand for
possession by Landlord after any Default by Tenant, Tenant covenants and
agrees to surrender possession of the demised Premises to Landlord, in the
same condition as when Tenant first occupied the Demised Premises, ordinary
wear and tear excepted.
13.2 HOLDING OVER. If Tenant shall remain on the Demised
Premises after the expiration of the Lease Term without written agreement
providing otherwise, Tenant, at Landlord's election, shall be deemed to be a
tenant from month to month, at a monthly rental, payable in advance, equal
21
to 150% of the Monthly Rent, and Tenant shall pay all other sums due and be
bound by all of the other terms, covenants and agreements of this Lease.
Nothing contained herein shall be construed to give Tenant the right to hold
over at any time, and Landlord, in addition to collecting the increased
Monthly Rent and Additional Rent provided herein, may exercise any and all
remedies at law or in equity to recover possession of the Demised Premises,
as well as any damages incurred by Landlord due to Tenant's failure to vacate
the Demised Premises and deliver possession to Landlord as herein provided.
14. MISCELLANEOUS
14.1 NO IMPLIED WAIVER. No failure by Landlord to insist upon
the strict performance of any term, covenant or agreement contained in this
Lease, no failure by Landlord to exercise any right or remedy under this
Lease, and no acceptance of full or partial payment during the continuance of
any default by Tenant, shall constitute a waiver of any such term, covenant
or agreement or a waiver of any such right or remedy or a waiver of any such
Default by Tenant.
14.2 SURVIVAL OF PROVISIONS. Notwithstanding any termination of
this Lease, the same shall continue in force and effect as to any provisions
hereof which require observance or performance by Landlord or Tenant
subsequent to termination.
14.3 COVENANTS INDEPENDENT. This Lease shall be construed as if
the covenants herein between Landlord and Tenant are independent, and not
dependent, and Tenant shall not be entitled to any offset against Landlord if
Landlord fails to perform its obligations under this Lease.
14.4 COVENANTS AS CONDITIONS. Each provision of this Lease
performable by Tenant shall be deemed both a covenant and a condition.
14.5 JOINT AND SEVERAL OBLIGATIONS. If Tenant is constituted of
two or more persons, corporations or other entities, all agreements,
covenants, representations and warranties of Tenant herein are the joint and
several obligations of the persons or entities constituting Tenant. Notice
given to any one of the persons or entities constituting Tenant shall be
deemed to have been given to all such persons or entities.
14.6 TENANT'S REMEDIES. Tenant may bring a separate action
against Landlord for any claim Tenant may have against Landlord under this
Lease, provided Tenant shall first give written notice thereof to Landlord
and shall afford Landlord a reasonable opportunity to cure any such default.
In addition, Tenant shall send notice of such default by certified or
registered mail, postage prepaid, to the holder of any mortgage or deed of
trust covering the Demised Premises, the Property or any portion thereof
whose address Tenant has been notified in writing, and shall afford such
holder a reasonable opportunity to cure any default on Landlord's behalf. In
no event will Landlord be responsible for any damages incurred by Tenant for
loss of profits or interruption of business as a result of any default by
Landlord hereunder. In no event will Tenant be entitled to terminate this
Lease as a result of any default by Landlord hereunder.
22
14.7 BINDING EFFECT. This Lease shall extend to and be binding
upon the heirs, executors, legal representatives, successors and permitted
assigns of the respective parties hereto. The terms, covenants, agreements
and conditions in this Lease shall be construed as covenants running with the
Land.
14.8 NOTICES AND DEMANDS. All notices, demands or xxxxxxxx
under this Lease shall be in writing, signed by the party giving the same and
shall be deemed properly received when actually received by the recipient or,
if mailed, on the earlier of actual receipt by the recipient or three
business days after mailing. Mailed notices shall be sent by registered or
certified United States mail, postage prepaid, addressed to the party to
receive the notice. Notices shall be sent to the addresses for the parties
set forth in the first paragraph of this Lease or at such other address as
either party may notify the other of in writing.
14.9 TIME OF THE ESSENCE. Time is of the essence under this
Lease, and all provisions herein relating thereto shall be strictly construed.
14.10 CAPTIONS FOR CONVENIENCE. The headings and captions hereof
are for convenience only and shall not be considered in interpreting the
provisions hereof.
14.11 SEVERABILITY. If any provision of this Lease shall be held
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and there shall be deemed substituted for the affected provision a
valid and enforceable provision as similar as possible to the affected
provision.
14.12 GOVERNING LAW. This Lease shall be interpreted and
enforced according to the laws of the State of Minnesota.
14.13 ENTIRE AGREEMENT. This Lease and any Exhibits and Rider to
Lease referred to herein constitute the final and complete expression of the
parties' agreements with respect to the Demised Premises and Tenant's
occupancy thereof. Each party agrees that it has not relied upon or regarded
as binding any prior agreements, negotiations, representations, or
understanding, whether oral or written, except as expressly set forth herein.
14.14 NO ORAL AMENDMENT OR MODIFICATION. No amendment or
modification of this Lease, and no approvals, consents or waivers by Landlord
under this Lease, shall be valid or binding unless in writing and executed by
the party to be bound.
14.15 REAL ESTATE BROKERS. Tenant covenants to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions, charges or claims by any broker
or other agent with respect to this Lease or the negotiation thereof other
than the Paramount Real Estate Corporation and any other broker listed as a
Participating Broker on Exhibit "A" attached hereto.
23
14.16 RELATIONSHIP OF LANDLORD AND TENANT. Nothing contained
herein shall be deemed or construed as creating the relationship of principal
and agent or of partnership, or of joint venture by the parties hereto, it
being understood and agreed that no provision contained in this Lease nor any
acts of the parties hereto shall be deemed to create any relationship other
than the relationship of Landlord and Tenant.
14.17 LIMITATION ON PERSONAL LIABILITY OF LANDLORD.
Notwithstanding anything to the contrary contained in this Lease, it is
understood and agreed that there shall be no personal liability on the part
of Landlord or any of its beneficiaries, successors or assigns with respect
to any of the terms, covenants and conditions of this Lease, and Tenant shall
look solely to the equity of Landlord in the Demised Premises in the event of
any default or liability of Landlord under this Lease, such exculpation of
liability to be absolute and without any exception whatsoever.
14.18 AUTHORITY OF TENANT. Each individual executing this Lease
on behalf of Tenant represents and warrants that s/he is duly authorized to
deliver this Lease on behalf of Tenant and that this Lease is binding upon
Tenant in accordance with its terms.
14.19 PARK. Landlord hereby reserves the right to (i) change the
name or street address of the Building(s), the Property, the Park and/or the
Demised Premises, (ii) add to, improve, or alter any part or all of the
Property, Building(s) or Park, (iii) add to, improve or alter any part or all
of the Parking Area or other Common Facilities or other portion of the Park,
and (iv) relocate Tenant to other substantially similar premises within the
Property at Landlord's expense upon thirty (30) days' written notice to
Tenant. The foregoing rights are exercisable without liability for any
inconvenience suffered by Tenant as a result thereof (including any
diminution of light, air or view), and without notice to Tenant (except as
provided otherwise in clause (iv), and Tenant shall not be entitled by reason
thereof to terminate this Lease or to claim any abatement or reduction of
rental hereunder.
14.20 LITIGATION; FINANCIAL CONDITION. Tenant represents and
warrants to Landlord that Tenant is not involved in any pending or threatened
litigation, proceeding, lawsuit, administrative hearing or other action of
any nature whatsoever, an adverse determination of which could materially and
adversely affect Tenant's financial condition or its ability to perform under
this Lease. Tenant covenants and agrees to deliver to Landlord on or before
the execution of this Lease a financial statement, dated within the last six
(6) months of the date hereof, setting forth Tenant's financial condition.
Tenant represents and warrants to Landlord that such financial statement will
accurately reflect Tenant's financial status as of the date delivered to
Landlord.
14.21 GENERAL RULES OF CONSTRUCTION.
A. This Lease may be executed in several counterparts
and the counterparts shall constitute one and the same
instrument.
B. Landlord may act under this Lease by its attorney
or agent.
C. (I) Wherever appropriate herein, the singular
includes the plural and the plural includes the singular; (ii)
whenever the word "including" is used herein, it shall be deemed
to
24
mean "including, but not limited to"; (iii) the words "re-
enter" and "re-entry" as used herein shall not be restricted to
their technical legal meaning.
D. The language in all parts of this Lease shall in
all cases be construed as a whole according to its fair meaning,
and not strictly for nor against either Landlord or Tenant, and
should a court be called upon to interpret any provision hereof,
no weight shall be given to, nor shall any construction or
interpretation be influenced by, any presumption of preparation
of this Lease by Landlord or by Tenant.
14.22 RULES AND REGULATIONS. Tenant agrees to comply with and
observe all reasonable rules and regulations established by Landlord for the
Property from time to time. Tenant's failure to keep and observe such rules
and regulations shall constitute a default pursuant to the terms of this
Lease.
IN WITNESS WHEREOF the parties hereto have caused this Lease to be
executed the day and year first above written.
LANDLORD:
Xxxxxx X. Xxxxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
Its: Owner
-------------------------
TENANT:
Hypertension Diagnostics, Inc.
(a Minnesota Corporation)
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Its: President
-------------------------
25
RIDER TO LEASE
DATED OCTOBER 24, 1997
BY AND BETWEEN
XXXXXX X. XXXXXXXX, AS LANDLORD
AND
HYPERTENSION DIAGNOSTICS, INC.,
(A MINNESOTA CORPORATION), AS TENANT
IMPROVEMENTS:
Landlord agrees to provide, at no cost to Tenant, the following improvements:
1. Paint all office walls that are currently painted and wipe down
wallpapered walls.
2. Recarpet entire office area with the exception of the VCT ENTRANCE areas,
with a $12.00/yard allowance.
3 Replace damaged and stained ceiling tiles.
4. Replace all light bulbs and ballasts which are not working.
5. Service and certify that HVAC units are in good working condition as of
commencement date of lease.
6. Clean plumbing fixtures, bathrooms, windows and light fixtures.
7. Repair or replace any items/fixtures/components of the Demised Premises
which may be inoperative, damaged or broken.
Any improvements other than those listed above shall be at Tenants' sole cost
and expense with prior approval by Landlord.
LANDLORD: TENANT:
Xxxxxx X. Xxxxxxxx Hypertension Diagnostics, Inc.
(a Minnesota Corporation)
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------ ----------------------
Xxxxxx X. Xxxxxxxx
Its: Owner Its: President
----------------------- ---------------------
Date: 10/27/97 Date: 10/24/97
---------------------- --------------------
26
EXHIBIT "A"
TO
THE WATERS
LEASE OF SPACE
BASIC LEASE INFORMATION
TENANT: Hypertension Diagnostics, Inc., (a Minnesota
Corporation)
TENANT'S TRADE NAME: Hypertension Diagnostics, Inc.
LAND - LEGAL DESCRIPTION: Xxx 0, Xxxxx 0, Xxxx Xxxxx - Xxxxxxxxx to the plat
thereof on file in the office of the Dakota County
Recorder, Dakota County, Minnesota
DEMISED PREMISES -APPROXIMATE TOTAL: 6,947 Square Feet
DEMISED PREMISES -APPROXIMATE OFFICE: 4,110 Square Feet
DEMISED PREMISES -APPROXIMATE WAREHOUSE: 2,837 Square Feet
DEMISED PREMISES - ADDRESS: 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
SPACE NUMBER: Suite 108
LEASE TERM: Thirty-Six (36) Months
COMMENCEMENT DATE: November 1, 1997
EXPIRATION DATE: October 31, 2000
BASE RENT - TOTAL FOR LEASE TERM: $155,448.00
BASE RENT - TOTAL ANNUAL: $51,816.00
BASE RENT - MONTHLY RENT AMOUNT: $4,318.00
TENANT'S PRO RATA SHARE (FOR ADDITIONAL RENT): 13.40% (6,947 DIVIDED BY 51,845)
A-1
INITIAL MONTHLY DEPOSIT AMOUNT: $6,529.46
SECURITY DEPOSIT AMOUNT: $6,529.46
PLACE FOR PAYMENTS: Welsh Companies, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Accounting Department
PERMITTED USE(S) BY TENANT: Office/Warehouse/Light Assembly and
Manufacturing
PARTICIPATING BROKERS: Xxxx Xxxxxxx, Paramount Real Estate
Corporation and Xxxxx Xxxxxxx,
JBL Companies, Inc.
A-2
EXHIBIT B
THIS IS A DIAGRAM DEPICTING PHASE II OF
0000 XXXXXX XXXX, XXXXX, XXXXXXXXX DEVELOPMENT.
B-1
EXHIBIT C
THIS IS A DIAGRAM DEPICTING THE SITE PLAN FOR
THE WATERS OFFICE COMPLEX IN EAGAN, MINNESOTA.
C-1
EXHIBIT "D"
ENVIRONMENTAL RIDER
1. TENANT'S REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING THE USE OF
HAZARDOUS SUBSTANCES/PERIODIC NOTICE
(a) ACCEPTANCE OF PROPERTY AND COVENANT TO SURRENDER. Tenant accepts
the Property as being in good sanitary order, condition and repair and
accepts all buildings and other improvements in their present condition.
Tenant agrees on the last day of the term of this Lease, to surrender the
Demised Premises to Landlord in good and sanitary order, condition and
repair, except for such wear and tear as would be normal for the period of
the Tenant's occupancy.
No spill, deposit, emission, leakage or other release of Hazardous
Substances on the Property or the soil, surface water or groundwater thereof
shall be deemed to be "wear and tear (that) would be normal for the period of
the Tenant's occupancy." Tenant shall be responsible to promptly and
completely clean up any such release caused by Tenant, its officers and
employees, agents, contractors, and invitees as shall occur on the Property
during the term of this Lease and shall surrender the Property free of any
contamination or other damage caused by such occurrences during the term of
the Lease.
(b) MAINTENANCE OF DEMISED PREMISES. Tenant shall, at its sole cost
and expense, keep and maintain the Demised Premises in good and sanitary
order, condition, and repair. As part of this maintenance obligation, Tenant
shall promptly respond to and clean up any release or threatened release by
Tenant of any Hazardous Substance into the drainage systems, soil, surface
water, groundwater, or atmosphere, in a safe manner, in strict accordance
with applicable Law, and as authorized or approved by all federal, state,
and/or local agencies having authority to regulate the permitting, handling,
and clean up of hazardous substances.
(c) USE OF HAZARDOUS SUBSTANCES. Tenant shall not use, store,
generate, treat, transport, or dispose of any Hazardous Substance on the
Property without first obtaining Landlord's written approval. Tenant shall
notify Landlord and seek such approval in writing at lease thirty (30) days
prior to bringing any Hazardous Substance onto the Property. Landlord may
withdraw approval of any such Hazardous Substance at any time, for reasonable
cause related to the threat of site contamination, or damage or injury to
persons, property or resources on or near the Property. Upon withdrawal of
such approval, Tenant shall immediately remove the Hazardous Substance from
the site. Landlord's failure to approve the use of a Hazardous Substance
under this paragraphs shall not limit or affect Tenant's obligations under
this Lease, including Tenant's duty to remedy or remove releases of
threatened releases; to comply with Applicable Law relating to the use,
storage, generation, treatment, transportation, and/or disposal of any such
Hazardous Substances; or to indemnify Landlord against any harm or damage
caused thereby.
D-1
(d) REPORTS TO LANDLORD. For any month in which any Hazardous
Substances have been used, generated, treated, stored, transported or
otherwise been present on or in the Property pursuant to the provisions of
the preceding paragraph, Tenant shall provide Landlord with a written report
listing the Hazardous Substances which were present on the Property; all
releases of Hazardous Substances that occurred or were discovered on the
Property; all compliance activities related to such Hazardous Substances,
including all contacts with government agencies or private parties of any
kind concerning Hazardous Substances; and all manifests, business plans,
consent agreements or other documents relating to Hazardous Substances
executed or requested during that time period. The report shall include
copies of all documents and correspondence related to such activities and
written reports of all oral contact relating thereto.
(e) ENTRY BY LANDLORD. Tenant shall permit Landlord and his agents to
enter into and upon the Demised Premises, upon notice, at all reasonable
times for the purpose of inspecting the Demised Premises and all activities
thereon, including activities involving Hazardous Substances, or for purposes
of maintaining any buildings on the Property. Such right of entry and
inspection shall not constitute managerial or operational control by Landlord
over any activities or operations conducted on the Property by Tenant.
II. TENANT'S INDEMNITY AND RELEASE.
(a) INDEMNITY.
(i) Tenant hereby indemnifies, defends an holds harmless
Landlord from and against any suits, actions, legal or
administrative proceedings, demands, claims, liabilities, fines,
penalties, losses, injuries, damages, expenses or costs including
interest and attorneys' fees, incurred by, claimed or assessed
against Landlord under any laws, rules, regulations, including,
without limitation, Applicable Laws (as hereinafter defined), in
any way connected with any injury to any person or damage to any
property or any loss to Landlord caused by Tenant, its officers,
employees, agents, contractor and invitees occasioned in any way
Hazardous Substances (as hereinafter defined) on the Property or
the Demised Premises.
(ii) This indemnity specifically includes the direct
obligation of Tenant to perform any remedial or other activities
required, ordered, recommended or requested by any agency,
government official or third party, or otherwise necessary to avoid
or minimize injury or liability to any person, or to prevent the
spread of pollution, caused by Tenant's activities in the Demised
Premises, (hereinafter the "Remedial Work"). Tenant shall perform
all such work in its own name in accordance with Applicable Laws
(as hereinafter defined).
(iii) Without waiving its rights hereunder, Landlord may, at its
option, perform such remedial or removal work as described
in clause (ii) above, and
D-2
thereafter seek reimbursement for the costs thereof Tenant shall
permit Landlord access to the Property to perform such remedial
activities.
(iv) Whenever Landlord has incurred costs described in this
section, Tenant shall, within ten (10) days of receipt of notice
thereof, reimburse Landlord for all such expenses together with
interest from the date of expenditure at the "applicable federal rate"
established by the Internal Revenue Service.
(b) AGENCY OR THIRD PARTY ACTION.
Without limiting its obligations under any other paragraph of this
Agreement, tenant shall be solely and completely responsible for responding
to and complying with any administrative notice, order, request or demand, or
any third party claim or demand relating to potential or actual contamination
on the Demised Premises. The responsibility conferred under this paragraph
includes but is not limited to responding to such orders on behalf of the
Landlord and defending against any assertion of Landlord's financial
responsibility or individual duty to perform under such orders. Tenant shall
assume, pursuant to Paragraph (a) above, any liabilities or responsibilities
which are assessed against Landlord in any action described under this
Paragraph (b).
(c) EXCEPTION TO TENANT'S COVENANTS.
TO THE BEST OF LANDLORD'S KNOWLEDGE, NO HAZARDOUS SUBSTANCES EXIST
WITHIN THE DEMISED PREMISES AT THE COMMENCEMENT DATE OF THIS LEASE AND
LANDLORD SHALL INDEMNIFY AND DEFEND TENANT, ITS EMPLOYEES AND AGENTS AND SAVE
THEM HARMLESS FROM AND AGAINST ANY AND ALL LOSS AND AGAINST ALL CLAIMS,
ACTIONS, DAMAGES, LIABILITY AND EXPENSES ARISING OUT OF THE PRESENCE OF
HAZARDOUS MATERIALS ON THE PREMISES PRIOR TO COMMENCEMENT OF THIS LEASE OR
WHICH CAME ON TO THE PREMISES THROUGH NO FAULT OR ACTION OF TENANT.
III. DEFINITIONS.
(a) HAZARDOUS SUBSTANCE.
"Hazardous Substance(s)" shall mean any substance which at any time
shall be listed as "hazardous" or "toxic" under the Comprehensive
Environmental Response Compensation
D-3
and Liability Act ("CERCLA"), 42 U.S.C. `` 9601 ET SEQ., as amended and
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. " 6901 ET
SEQ., as amended, or in the regulations implementing such statutes, or
which has been or shall be determined at any time by any agency or court
to be a hazardous or toxic substance regulated under any other
Applicable Laws (as hereinafter defined). The term "Hazardous"
Substance(s)" shall also include, without limitation, raw materials,
building components, the product or any manufacturing or other
activities on the Property, wastes, petroleum products, or special
nuclear or by-product material as defined by the Atomic Energy Act of
1954, 42 U.S.C. `` 3011, ET SEQ., as amended.
(b) APPLICABLE LAW(S).
"Applicable Law(s)" shall include, but shall not be limited to,
CERCLA, RCRA, the Federal Water Pollution Control Act, 33 U.S.C. `` 1251
ET SEQ., the Clean Air act, 42 U.S.C. ``7401 ET SEQ., as amended, and
the regulations promulgated thereunder, and any other federal, state
and/or local laws or regulations, whether current in existence or
hereafter enacted or promulgated, that govern or relate to:
(a) The existence, cleanup and/or remedy of contamination of
property;
(b) The protection of the environment from spilled, deposited or
otherwise emplaced contamination;
(c) The control of hazardous or toxic substances or wastes; or
(d) The use, generation, discharge, transportation, treatment,
removal or recovery of hazardous or toxic substances or wastes,
including building materials.
D-4
